President Trump’s new private appellate attorney announced that Trump has filed a notice to begin the process of appealing his convictions in the business records prosecution brought by Alvin Bragg, Manhattan’s elected progressive Democratic district attorney. The appeal will be taken in the Appellate Division, First Department, which reviews cases from Manhattan’s lower courts. Depending on the outcome, appeals to the state’s highest court, the New York Court of Appeals, and potentially to the U.S. Supreme Court could follow. The process could take years.
A few days before being inaugurated, Trump was given an “unconditional discharge” sentence by Judge Juan Merchan — meaning no incarceration term, no probation, and no fine.
Merchan, an activist Democrat who contributed to Joe Biden’s 2020 campaign against Trump in violation of state judicial ethics rules and yet declined to recuse himself from the case, was insistent on sentencing Trump — just as Bragg persisted in the case despite Trump’s election. That’s because a sentence must be imposed before the judgment of conviction can be entered on the public record. Consequently, for what little good it did Democrats, the sentencing formally branded Trump a convicted felon.
Nevertheless, the sentencing and entry of judgment also conclude proceedings in the trial court, enabling Trump to pursue his appeal. That is the president’s best shot at not being a convicted felon for long. As I’ve summarized (see, e.g., here), the investigation, charges, and trial were rife with error. The convictions should be overturned.
To seek that outcome, Trump has retained Bob Giuffra, a deservedly well-regarded New York attorney. The president will be well represented.
Trump’s lead trial lawyers, Todd Blanche and Emil Bove, and his lead private appellate lawyer, D. John Sauer, could not have participated in the appeal because the president has nominated all of them to top positions in the Justice Department. In fact, Bove, who is slated to become the principal deputy to Blanche (who, in turn, is slated to become deputy attorney general), is already working at the DOJ as the acting deputy AG. (Sauer is slated to become solicitor general.)
Critics will undoubtedly contend that Trump’s pursuit of the Manhattan appeal while he is president undermines his prior position that the criminal cases brought against him had to be dropped because sitting presidents may not be subjected to the distraction and ignominy of criminal proceedings. Obviously, the appeal of criminal convictions entails criminal proceedings.
That said though, appeals involve claims that are strictly legal and typically handled by experienced appellate attorneys with little or no participation by the client. That contrasts starkly with trial proceedings, in which the client is an essential participant in preparing the defense, is required by law to be present in court, and deals with the anxiety of potential conviction and incarceration.
It’s really an apples and oranges comparison.